We take the following facts from the record developed at the hearing on the
admissibility of defendant's statements. On January 6, 2005, Detective Wayt of the
Tigard Police was assigned to investigate defendant. Wayt went to defendant's home, but
defendant was not there. Wayt left a business card and a note asking defendant to call
him. On January 12, defendant called Wayt. Wayt told defendant that "allegations" had
been made and that Wayt "needed to interview him." Defendant agreed to come to the
police station. At the station, Wayt walked defendant to the interview room. Wayt was
dressed in plain clothes and was unarmed. Wayt locked the doors to the interview room
but told defendant that he was not under arrest, that he was free to leave at any time if he
did not like Wayt's questions, and that he was free to use the restroom or to get something
to drink. Wayt did not advise defendant of his Miranda rights.

The interview lasted between 45 minutes and an hour. Defendant spoke
English with a thick Spanish accent, but he assured Wayt that he could understand him
and did not need an interpreter. He did not ask to leave at any time. Wayt made no
threats or promises to defendant at any time during the interview, and defendant did not
appear to be under the influence of intoxicants or otherwise mentally or physically
impaired. When the interview concluded, Wayt escorted defendant to the lobby of the
police station. Defendant agreed to be interviewed by Detective McKinney of the
Washington County sheriff's office in Hillsboro the following week, on January 18.

Defendant had no way to get to Hillsboro, so Wayt picked him up at his
home on January 18 and drove him to the sheriff's office in his unmarked police car.
Defendant rode in the front passenger seat. Wayt was again dressed in plain clothes; he
was armed, but his gun was concealed at least to some degree by his coat. They arrived at
the sheriff's office at about 2:35 p.m. Wayt left defendant in the lobby while he notified
McKinney that they had arrived. Wayt and McKinney both went to the lobby, where
Wayt introduced McKinney and defendant. McKinney was dressed in plain clothes.
McKinney and defendant went to McKinney's office; Wayt left the building and went for
a walk. Wayt later testified that it was about 2:45 p.m. when he left defendant with
McKinney.

At about 3:30 p.m., McKinney called Wayt on his cell phone and asked him
to return to the office. Wayt arrived there a few minutes later and sat down with
defendant and McKinney. He did not tell defendant that he was free to leave, but
McKinney told him that he had "gone over the rights" with defendant. Defendant
acknowledged that McKinney had done so. Wayt confirmed with defendant that he
understood his rights and was comfortable giving them up. After that, the two detectives
and defendant had a conversation that lasted between five and 10 minutes. All three
spoke in English. Again, Wayt did not make any threats or promises to defendant, and
defendant did not appear to be impaired in any way. Defendant did not ask to leave at
any time. When the interview ended, Wayt gave defendant a ride back to his home.

Defendant was indicted two weeks later on three counts of first-degree
sexual abuse. Before trial, the state requested a hearing to determine the admissibility of
the statements that defendant made to the detectives during the interviews. Wayt was the
only witness at the hearing. He testified to the facts stated above. At the hearing, the
state also introduced into evidence an "advice of rights statement," a preprinted form
listing the Miranda warnings. It had an "x" on the line next to the statement "Do you
understand each of these rights?" The form appeared to have been signed by both
defendant and McKinney. The date and time were handwritten as January 18, 2005, at
2:40 pm. Wayt testified that he was not present when the form was filled out, and when
asked whether defendant had acknowledged the form in front of him, Wayt stated that he
could not remember.

After Wayt finished testifying, the prosecutor argued that the statements
that defendant made to the detectives were all voluntary. He argued that neither of the
interviews involved compelling circumstances and that Miranda warnings were thus not
required. With respect to the January 18 interview, he asserted that, even though Miranda
warnings were not required, they were in fact given, arguing further that defendant had
voluntarily waived his rights.

Defense counsel's entire argument was as follows:

"Thank you, Your Honor. I really am not going to focus on the
January 12th matter at all. I'm going to focus on the January 18th issue.

"We would point out to the Court that although this was supposed to
be freely and voluntarily made, the officer testified that he came with the
firearm that was on his person and to some degree was visible at the time of
being picked up at the apartment and then transported to [the sheriff's
office], and then subsequently transported back, that the detective himself
didn't make any significant observations other than the defendant apparently
was responding in the English language to questions in some form or
fashion. But the detective--officer that witnessed on the January 18th
matter did not make any observations, I don't believe, regarding whether or
not he was intoxicated or had any mental issues or physical issues at the
time of that interview presumably that may or may not have been done by
Detective McKinney who is not being offered as a witness.

"So on those issues, I think there are some compelling issues and we
request that as to the January 18th conference, the Court not allow that."

The trial court ruled first that defendant's statements on January 12 were
voluntary. With respect to his statements on January 18, the court ruled as follows:

"On the 18th, the only statements that the Court can really be
concerned with at this point, and the only information that I really know
about are the conversations or statements that may have been made after the
detective returned to McKinney's office. I don't know what statements or
events occurred during that period of time.

"So my ruling is limited to what the officer heard after he returned
from his walk and, of course, what he did before he brought the defendant
there.

"Again, the defendant voluntarily went with the officer, he was not
under arrest. The fact that the officer may have had a firearm, there was no
indication that he showed it, brandished it, pointed to it, indicated that it
was there in any way that would imply a threat. There were no promises
made on the way in to the station, or to the sheriff's office. He went
voluntarily with Detective McKinney. Whatever happened, happened in
there. There is no indication that anything happened in there that involved
threats or overcoming his voluntary nature of being there. The officer
returned--the officer in my notes indicated that while he was there, no
threats were made, no promises were made. He did not appear to be under
the influence of anything. He did not appear to have any disabilities.
Again, the conversation was occurring in English. There didn't appear to be
any problems with English. There were no apparent problems [t]hat my
notes reflect.

"Miranda may have been given. There is an indication on a piece of
paper with a signature of the individual, but Miranda was not required for
this proceeding. He was not under arrest; he was not restrained in any way.
In fact, he was returned again to his home by the officer. Any statements
that he made to the officer when he returned--that he observed upon his
return from his walk [were] freely and voluntarily, intelligently and
knowingly given and will be admitted."

After the court ruled, defense counsel sought clarification, asking whether the court's
ruling as to the January 18 interview "only relates to statements that were made in front of
Detective [Wayt] at that time." The court confirmed that the state could introduce only
the statements that defendant made after Wayt returned from his walk. Counsel did not
raise any objection or offer any other argument.

At defendant's trial, Wayt testified that, at both interviews, defendant had
admitted to him that he had sexually abused the victim. A jury found defendant guilty on
all counts. This appeal followed.

We conclude that the circumstances at the January 12 interview were not
compelling for Oregon constitutional purposes and that defendant was not under restraints
comparable to arrest for purposes of the Fifth Amendment. We acknowledge that an
accusation of criminal activity can contribute to compelling circumstances. See, e.g.,
Miranda v. Arizona, 384 US 436, 455, 86 S Ct 1602, 16 L Ed 2d 694 (1966) (noting that
"[t]he aura of confidence in [a defendant's] guilt undermines his [or her] will to resist");
State v. Roble-Baker, 340 Or 631, 643, 136 P3d 22 (2006) (holding that asking the
defendant questions that assumed her guilt contributed to compelling circumstances).
However, we reject defendant's assertion that Wayt in effect accused defendant of a crime
merely by informing him that allegations had been made. Nothing in the record indicates
that Wayt suggested that he believed the allegations or that he otherwise conveyed an
"aura of confidence" in defendant's guilt.

In any event, defendant's liberty was not restrained when Wayt told him that
allegations had been made. Defendant was at home at the time; he and Wayt were talking
on the telephone. Cf. id.at 642 (when the police accused the defendant of killing her
husband, she was at the police station, and her liberty was restrained because the police
had created a situation in which she was required, for all practical purposes, to remain
there). The circumstances were no more compelling when defendant went to the police
station: Wayt made it clear that defendant was free to leave if he did not like Wayt's
questions. We acknowledge that the fact that the interview room doors were locked could
contribute to compelling circumstances, but, by itself, it is not enough. Cf. State v.
Werowinski, 179 Or App 522, 531, 40 P3d 545, rev den, 334 Or 632 (2002) ("[T]he fact
that defendant was unable to leave the patrol car is not determinative of the existence of
compelling circumstances."). In short, given the circumstances of the interview--particularly that Wayt expressly told defendant that he was not under arrest and that he
was free to leave at any time--we do not believe that a reasonable person in defendant's
position would have felt compelled to answer Wayt's questions or have understood
himself to be under restraints comparable to those associated with a formal arrest. The
trial court correctly concluded that Miranda warnings were not required. It follows that
the court did not err in allowing Wayt to testify about defendant's statements in the
January 12 interview.

The state agrees with defendant that his arguments on appeal are preserved.
Nevertheless, we have an independent obligation to ensure that preservation requirements
are satisfied, State v. Wyatt, 331 Or 335, 344-46, 15 P3d 22 (2000), and, in this instance,
we do not accept the state's concession. As explained below, defendant did not preserve
his exploitation argument. Consequently, we do not reach the merits of defendant's
argument.

To preserve an asserted error for appeal, "a party must provide the trial
court with an explanation of his or her objection that is specific enough to ensure that the
court can identify its alleged error with enough clarity to permit it to consider and correct
the error immediately, if correction is warranted." Id. at 343. Preservation rules are
meant to ensure "that the position of a party is presented clearly to the trial court and that
parties are not taken by surprise, misled, or denied opportunities to meet an argument."
State v. Wideman, 203 Or App 359, 364, 124 P3d 1271 (2005).

Before the trial court, defendant did not argue that his statements to Wayt
were derived through exploitation of his statements to McKinney. The only argument
that he made with respect to the statements to McKinney was his counsel's assertion that
Wayt "did not make any observations, I don't believe, regarding whether or not
[defendant] was intoxicated or had any mental issues or physical issues at the time of that
interview presumably that may or may not have been done by Detective McKinney who is
not being offered as a witness." Thus, defendant argued that the state failed to prove that
his statements to McKinney alone were not made under compelling circumstances.
However, he did not assert the position that he now takes on appeal--namely, that
defendant's statements to Wayt were the direct product of his earlier statements to
McKinney and that they must be suppressed on exploitation grounds. Consequently, the
trial court was not alerted to the substance of defendant's position on appeal, so we will
not consider that argument.

2. In support of his argument, defendant relies on three cases in which we held that
compelling circumstances existed when the police confronted the defendant with incriminating
evidence while the defendant's liberty was restrained. See McMillan, 184 Or App at 70; State v.
Werowinski, 179 Or App 522, 40 P3d 545, rev den, 334 Or 632 (2002); State v. Rose, 109 Or
App 378, 819 P2d 757 (1991). To the extent that defendant's citation of those cases can be read
as an argument that Wayt confronted him with incriminating evidence, we reject that argument.
In State v. Shaff, 209 Or App 68, 74, 146 P3d 389 (2006), rev allowed, 342 Or 473 (2007), we
explained that, when a suspect being questioned by a police officer "becomes aware that the
officer has sufficient evidence to make an arrest, the circumstances become much more
compelling," and that "[d]irect confrontation with the evidence of criminal conduct also exerts
pressure on a reasonable person to provide an explanation." (Citations and internal quotation
marks omitted.) Nothing in the record indicates that Wayt directly confronted defendant with
any evidence, much less sufficient evidence to make an arrest. Merely telling someone that
allegations have been made is not the same as directly confronting the person with incriminating
evidence.

3. Defendant also argues that his statements on January 18 were the product of
exploitation of his January 12 interview. Our conclusion that defendant's statements on January
12 were not obtained in violation of his Miranda rights obviates the need for any exploitation
analysis in that regard.